Mr. Michael Meacher (Oldham, West and Royton) (Lab): I wish to raise the case of Susan May in the light of continuing concerns about the safety of her conviction and against the background of new material that has come to light in recent years.
Mrs. May was imprisoned on 5 May 1993, convicted of murdering her elderly aunt, Mrs. Hilda Marchbank. Mrs. May was Mrs. Marchbank's devoted niece and carer. She has always maintained her innocence, and having served the sentence set down by the court and now been released, she still strongly insists that her name should now be cleared.
The trial judge said that the main plank of the evidence against Mrs. May was the forensic issues, and I therefore start with those. The three forensic experts from the Forensic Science Service, were Mr. Michael John Davie, Dr. Javaid Hussain and Dr. Wilfred Basely. In June 1996, Mr. Davie was discredited in the Court of Appeal in the case of the Crown v. Doheny, where the conviction was overturned. The Forensic Science Service carried out an internal investigation, the Holman report, regarding Mr. Davie's conduct in Mrs. May's case, and was concerned that his work had fallen short of the standards expected. At second appeal, the prosecution asked that Mr. Davie's evidence should be withdrawn. I should add that the defence was only recently made aware of the contents of the report.
Regarding the second of the forensic experts at the trial, Dr. Hussain, in May 2004 forensic science students at Paisley university carried out an examination of the evidence that he presented at the trial. He had testified that in his opinion he was "certain" that the three stains were in blood. Dr. Hussain's area of expertise was fingerprint detection and enhancement, not blood analysis. The students pointed out that the tetra-amino biphenyl test Dr. Hussain used was not a test from which he could draw so certain a conclusion and that it is only a very general screening test. As they said:
"Almost any biological material, in addition to blood, would show positive by this method."
Indeed, Professor Jamieson, who was formerly a police forensic expert and is now professor of forensic sciences at Glasgow university, has commented that it is very clear that in Mrs. May's case the prosecution forensic experts made declarations well beyond their remit which were prejudicial and damaging.
Turning to the third forensic expert, after the trial, Mrs. May's then solicitor sought for appeal purposes the assistance of a Forensic Science Service expert, Dr. Basely. That solicitor's behaviour at that time was considered to be "actionable" by Bindman & Co. solicitors who took over representation of Mrs. May's case.
My second main point is that Mrs. May's trial solicitor had been advised by Mr. Gartside QC to procure "independent" forensic expert advice for the defence. That advice was not acted on. The Criminal Cases Review Commission has chosen to use the Forensic Science Service, the same service that carries out work for the police, for its forensic analysis of Mrs. May's case. Again, I simply make the point that a conflict of interest must occur when the same forensic laboratory is asked to represent both parties.
The third general issue is that the use of DNA evidence in court by the FSS has been growing over the past 15 years, and many convictions have been secured on the basis of such evidence. There is, however, growing disquiet, because the criterion for DNA identification has been raised from identical readings at six locations to identical readings at 10 locations. Even that is now being described as unsatisfactory by Dr. Jefferies, the founding expert in the DNA field, who prefers identification on the basis of identical readings at 15 locations.
In Mrs. May's case, when the police took the cleaner to the house three days after the murder, they did not ask whether she had seen stains on the wall when she cleaned the house on the day before the murder. Her evidence, which was key to the prosecution case, was only sought some four weeks after Mrs. May's arrest, which was seven weeks after the murder. The cleaner was never given the opportunity to see the stains on the wall. The stain was not taken off the wall until five days after the murder, and it did not arrive at Dr. Basely's laboratory until 29 April, which was about seven weeks after the murder.
My fourth point concerns the disclosure of evidence to the defence by the police, which fell well short of complete openness. There are a number of examples of non-disclosure or only part disclosure in Mrs. May's case, and I shall briefly present three of them. First, a red car was seen parked outside the house on the night of the murder at approximately 12.45 am. Although the engine was running, there was no one in the car, which was there for 15 minutes. The defence did not draw the jury's attention to those facts. The three occupants have never been identified. Two separate witnesses saw the car. The defence was told that it was never found. Since the second appeal, it has come to light that the police did in fact locate a red car fitting the description. It belonged to the sister of a violent burglar, Michael Rawlinson, who had been drawn to the attention of the police as having been involved in this murder by two people who knew him. The sister had advertised and sold the car within three days of the murder. Forensic evidence taken from the car was never processed.
Secondly, in the police log for the first day of the investigation, clothing "fibres" are recorded as having been found on Mrs. Marchbank's hand. When taken to the forensic laboratory, they were described as
"visible fibres from left hand".
When that exhibit appeared in Mr. Davie's statement, which is the document from which the defence started its investigation, he had recorded them as "hairs", which would have been of little interest to the defence because in 1992 hairs were not able to provide a person's identification. Further investigation has shown that the police could not match any of Mrs. May's or the deceased's clothing with those fibres. The jury was robbed of significant discussion regarding the origin of the fibres because of the mischievous labelling of the exhibit.
Thirdly, the jury were told of an exhibit labelled, "Craftsman Baker Paper Bag"—a rather odd description—which turned out to be a paper bag containing meat scraps that tested positive for blood. There were finger marks on the outside of the bag that should have been tested but were not. All that I can say—I do not think that one could go further than this—is that that exhibit presents an innocent source of blood from which it is possible that Mrs. May could have made the stains on the day prior to the murder, but it was lost to the trial by a sloppy or mischievous forensic process.
I call on my hon. Friend the Minister to insist, on behalf of the Home Office, that the Criminal Cases Review Commission adopt a policy of forensic examination that is completely independent of the Forensic Science Service, the organisation that carries out most of the police forensic analysis. I further call on her to instigate a system of total disclosure to the defence of all case evidence, from whatever source, that is relevant to this case, without the need for itemised requests.
After a clearly flawed process, in forensic and legal terms, before and during Mrs. May's trial, those are the minimum conditions required for justice to be seen to be done. I therefore earnestly ask that those procedures be now put in place so that the continuing and significant doubts and uncertainties about this case can finally receive the fullest and most transparent examination of all the relevant facts that have previously been denied.
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): I am grateful to my right hon. Friend the Member for Oldham, West and Royton (Mr. Meacher) for giving me the opportunity not only to provide brief responses to the specific points that he raised, but to explain how this case has been handled so far. He will be familiar with much of that.
I know that my right hon. Friend has maintained an interest in the case. I also know that since her conviction, Susan May has pursued her case with two appeals against the conviction, two applications to the Criminal Cases Review Commission and a complaint against the police. I should like to take the opportunity to say something brief about each of them. Afterwards, I shall deal with the specific points about disclosure and the Forensic Science Service.
I am glad that we have a system that enables the Criminal Cases Review Commission to consider and reopen such cases, because I believe that if there has been a miscarriage of justice, we are most likely to be able to determine it through that mechanism.
Let me start with the first appeal. Four years after her conviction, Susan May lost her first appeal on 14 February 1997. The Court of Appeal rejected the fresh medical evidence that Susan May had suffered a memory gap about the circumstances of her aunt's death and said that it did not regard the conviction as unsafe. The appeal was followed by the first Criminal Cases Review Commission review. The case was one of several that was transferred to the commission from the Home Office in April 1997 following its establishment under the Criminal Appeal Act 1995. The commission considered an application from Susan May and concluded that it was worthy of further judicial scrutiny. In November 1999, the CCRC referred it to the Court of Appeal.
In 1993, Susan May also made a complaint against the police, but because of her impending criminal trial, it remained on the table and stayed there until 1998 while she pursued her first appeal. Greater Manchester police carried out the investigation of the complaint under the supervision of the Police Complaints Authority in accordance with the procedure that then pertained. In July 1999, an investigation report was submitted to the Police Complaints Authority, which issued a statement to the effect that the complaint had been investigated to its satisfaction. After that, the investigation report was submitted to the Crown Prosecution Service, which closely examined the report and concluded that there was no evidence that could secure a conviction.
The next step was to consider disciplinary action and, on 21 October 1999, Greater Manchester police submitted their proposals to the Police Complaints Authority. The Police Complaints Authority concluded that all bar one of the 22 allegations had not been substantiated because there was insufficient evidence to prove that any police officer had breached the police discipline code. The substantiated allegation was to do with an early interview by the police. It took place before Susan May's arrest and before she was cautioned. As my right hon. Friend said, she wanted to make the point that she should have been regarded as a suspect and not a witness, thereby having full protection under the law. The Police Complaints Authority agreed with her, and that became one of the subjects of Susan May's second appeal.
At the second appeal, the Court of Appeal heard arguments on the bloodstained handprint on a wall at the murder scene and the treatment of Susan May as a witness rather than a suspect, thereby denying her the protection under the law in relation to various comments that she made. The appeal judges ruled that her conviction was not unsafe and dismissed the second appeal on 7 December 2001.
Let me consider the second review by the CCRC. In August 2002, Mrs. May made a renewed application to the commission, and the second review is still going on. As my right hon. Friend knows, it would be inappropriate for me to discuss in detail the specific issues involved. I have inquired into that. The case is complex and I understand that the CCRC is carrying out several lines of investigation. A decision about whether to refer the case back to the Court of Appeal—I reiterate that that is a decision solely for the CCRC—will be made once its investigations are complete. In deciding whether to refer the case back to the Court of Appeal, the commission will apply the statutory test of whether there is a genuine possibility of the conviction being quashed. The decision on whether a conviction should be quashed rests with the Court of Appeal. That process means that I cannot deal with some of the detailed matters that my right hon. Friend raised.
John McDonnell (Hayes and Harlington) (Lab): It would be extremely helpful if we could have an indication of the time scale of the review being carried out by the Criminal Cases Review Commission. If the Minister cannot give us such an indication, will she at least take the message from the House that it is important that the commission now expedite the matter, given that the lady has now been released and wants some closure so that she can live her life afresh?
Fiona Mactaggart: I assure my hon. Friend that I shall communicate to the chairman of the Criminal Cases Review Commission the views that hon. Members have expressed in this debate about the importance of bringing this matter to a conclusion. Of course, that is a matter for the chairman, but I shall ensure that he is made aware of the feeling in the House.
My right hon. Friend the Member for Oldham, West and Royton mentioned two specific issues relating to the case. The first involved disclosure. I should start by pointing out that the common law disclosure arrangements that applied up to April 1997 were superseded by a statutory scheme in the Criminal Procedure and Investigations Act 1996, which pertains thereafter. We have recently strengthened the 1996 Act in part 5 of the Criminal Justice Act 2003. The relevant amendments came into force on 4 April this year. Although the legislation has been amended, its fundamental principle remains the same: that justice depends on full and frank disclosure by the prosecution of all relevant material.
Under the Act, the prosecution is under a statutory obligation to disclose to the defence all material which
"might reasonably be considered capable of undermining"
the prosecution case, or of assisting the defence case. This duty applies throughout the trial. This is a strong test designed to ensure that the defence gets the material that it needs and that the trial focuses on the points at issue. To ensure that the prosecutor has all the necessary information, there is a statutory code of practice, which has recently been revised, and which obliges the police to retain, record and reveal all relevant investigative material to the prosecutor. I might add that the Criminal Justice Act 2003 strengthens the scheme of prosecution disclosure. Under the unamended Act, two different prosecution disclosure tests applied, one before the defence had produced a defence statement and one after. We have amalgamated those into a single new test, the effect of which will be to ensure that the defence gets discloseable material at an earlier stage than hitherto.
My right hon. Friend's suggestion that all case material should be handed over to the defence is, I fear, unrealistic in most cases. Many cases generate large volumes of investigative material, and under my right hon. Friend's proposed arrangements it would fall not only to the prosecutor to consider unused investigative material, but to the defence as well, thereby duplicating effort. Considerable time would be wasted in considering large volumes of material that did not satisfy the disclosure test. It is also important to note that some material cannot be handed over to the defence. This includes so-called sensitive material, such as that relating to the identity of informants. Such material might sometimes have to be withheld from the defence on public interest immunity grounds, provided, of course, that the court had made an order to that effect.
To conclude, the Criminal Procedure and Investigations Act 1996 already contains a strong disclosure scheme that provides adequate safeguards for the defence. The key is for practitioners to apply the Act correctly in all cases. We have a responsibility in all aspects of the prosecution service and elsewhere to ensure that it is properly applied.
John McDonnell: It would be useful to put on record that, in this case, neither the volume nor the sensitivity of the material was used as an argument for barring the disclosure of information which I believe could have ensured that this lady would have been proved innocent.
Fiona Mactaggart: I said that I would draw the attention of the chairman of the Criminal Cases Review Commission to the debate. He will note what my hon. Friend has said. I am trying hard not to make specific comments about a case that is under consideration by that body, which is the proper body to decide on these matters. I am trying to deal with the general issues.
My right hon. Friend raised a general issue about the Forensic Science Service, and about the circumstances in which its services should be secured. The Forensic Science Service is an executive agency of the Home Office, and is the principal provider of impartial forensic science services to the police and other investigating forces. It provides information to support the investigation of crime and evidence for the Crown Prosecution Service and the courts, and it also gives independent advice to the Home Office and others who serve the administration of justice, including the Criminal Cases Review Commission.
The Forensic Science Service works within the criminal justice system for both the defence and the prosecution, and takes pride in its impartiality. I think it perfectly possible for an independent forensic science service to provide proper advice on different occasions and examine evidence scientifically for different parties in circumstances such as these. I think we should make it clearer that the duty of experts giving evidence should be to the court and to justice. The Criminal Procedure Rule Committee has published a consultation paper that examines the issue of expert evidence and responsibility in relation to the court. While there may be contestability in regard to particular issues of expert evidence, it is important that the court should be satisfied about the expertise, and satisfied that it has been deployed properly in specific cases.
I asked about the different tests in the Susan May case to which my right hon. Friend referred. I was told that the tests for the police were for blood, while those for the commission were for DNA. Two different processes are involved. The tests for the commission were carried out in Birmingham, and a report on the results was compiled by a Forensic Science Service employee in Wetherby. Those involved in the DNA tests were not involved in the original inquiry.
I believe that it is quite possible for a body such as the Forensic Science Service not to seek to justify an initiating decision, but to provide impartial, accurate, expert evidence in cases such as this. If there is evidence that demonstrates that it has failed to do that in a particular case, it should be taken into account by the Criminal Cases Review Commission in its review.
Mr. Meacher: I made it very clear that three of the forensic science experts who were brought in as witnesses had since been discredited. No one is casting aspersions on the Forensic Science Service in general. All I am saying is that it is important for the Criminal Cases Review Commission to have access to wholly independent evidence. I am sure that those who are concerned about the case would be satisfied if the CCRC were to seek such evidence from a wholly independent source, in the light of the very bad experience in this case.
Fiona Mactaggart: As I have said more than once, how the CCRC conducts the review is a matter for it. The principle is important. My right hon. Friend was probably involved, as I was, in campaigning for an independent body to be able to review miscarriages of justice. It cannot provide that independent function if Ministers tell it how to conduct its business. However, as I said, I will ensure that the chairman of the CCRC is made aware of this debate and all the points that have been raised in it. That is, I think, the only appropriate assurance that I can give from the Dispatch Box.
We want the criminal justice system to be fair, open and accessible. Those who believe that they have a genuine grievance, as does Mrs. May, should have recourse to redress. Her case to date, since her trial and conviction, has been exposed to a great deal of scrutiny. She has used the criminal justice system in pursuit of justice for herself and it is right that she should have the opportunity to do so. She has a further opportunity in the present review of the CCRC. We look forward to its result.
Question put and agreed to.
Adjourned accordingly at Eight o'clock.
